Despite Scalia’s professed methodology, we can also understand his opinion for the majority [in D.C. v. Heller] as an example of the modern understanding of the right to keep and bear arms, itself heavily influenced by the gun rights movement. Shortly after the Court decided Heller, Professor Reva Siegel described how “Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism.”
Professor [David] Cole similarly has argued that “the NRA almost certainly had more responsibility for the result in Heller than did ‘originalist’ theory.” Accounts of the NRA’s and other gun rights groups’ success in changing the Second Amendment narrative between the 1970s and Heller amply support these conclusions.
The second half of the Second Amendment’s 27 words adorns the lobby of the NRA’s headquarters, and beginning in the 1970s, the organization began a remarkable campaign to loosen gun regulations around the country in the name of the right to keep and bear arms. Many states amended their constitutions to expand protection of arms rights and passed laws normalizing gun carrying as a constitutional right.
The NRA rewarded politicians who supported gun rights and punished those who did not. Meanwhile, the group funded scholarship that “chang[ed] the academic landscape” by the time the question of whether the Second Amendment protects an individual right reached theSupreme Court.
Similarly, “[a]s a result of the NRA’s efforts at the national level, both the executive branch and Congress had endorsed an individual-rights view of the Second Amendment by the time the Supreme Court addressed the issue.”
Those efforts permeate Heller. The historical record did not change in the decades before Heller, and it provides at best ambiguous support for the majority in any event. But the terms of the popular and legal debate about the Second Amendment had shifted.
In 1991, former Chief Justice Warren Burger called the individual rights view of the Second Amendment “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime.” By 2008, fraud or no fraud, 73 percent of the American public agreed that the right to keep and bear arms protects an individual’s right to possess a gun. That year, the individual rights view became the law of the land in Heller.
Accounts of the gun rights movement’s influence on the understanding of the Second Amendment frequently end with the triumph of the individual rights view in Heller. Yet the social movement conflict did not end in 2008; it is now more pronounced than ever. And within that conflict, people overlook the fact that Americans exercise Second Amendment and self-defense rights with non-gun arms.
That neglect gets reflected in policies expanding gun rights. Furthermore, if Heller’s popular constitutionalism is a guide, the legal understanding of “arms” could follow suit. Indeed, as if anticipating this result, the 1999 edition of Black’s Law Dictionary added an entry for “right to bear arms”: “The constitutional right of persons to own firearms.”